Page images
PDF
EPUB

SPECIAL ADDRESS.

younger than Scott. At the time of his birth, Washington, at the age of 23, had returned from fighting the French in the vicinity of what is now Pittsburg, and had just been made commander-in-chief of the Virginia forces. William Cushing, of Massachusetts, who became Associate Justice of the Supreme Court of the United States, and declined to be its Chief Justice, had just been admitted to the bar. John Adams, who conferred so many honors upon Marshall, had just graduated at Harvard, and commenced the study of the law at Worcester, Massachusettes; Patrick Henry was nineteen, and about to enter upon his legal studies; the able John Rutledge, who became a justice of the Supreme Court of the United States, and for a short time its Chief Justice, was a boy of sixteen in Charleston, South Carolina; the eminent James Wilson, of Pennsylvania, who, as justice of that court, and otherwise did so much for American constitutional liberty, was then still in the schools of Scotland at the age of thirteen; Jefferson was twelve years of age; John Jay and Oliver Ellsworth, each of whom became Chief Justice of the Supreme Court of the United States, and William Patterson, of New Jersey, who be came a justice of the same court, were boys of ten, while Madison was a little more than four years of age, and Edmund Randolph a little more than two; but Hamilton was not born until more than a year afterwards. At that time there were less than three hundred thousand inhabitants in all the country south of the Potomac.

Fortunately for John Marshall, his father, Col. Thomas Marshall, was a man of culture, and trained his children accordingly. John had a natural taste for poetry and history; and at the age of twelve had read much of Shakespeare, Milton, Pope and Dryden; but it is apparent that he labored under great disadvantages, for James Monroe, who was nearly three years younger, was his classmate during the year he attended school at Westmoreland. At the age of fifteen he left that school, and resumed study under the supervision of Rev. James

JOHN B. CASSODAY.

Thompson, an Episcopal clergyman from Scotland, and also continued such studies as were to the taste of a nature full of romance and political enthusiasm. At eighteen he began the study of the law, but two years afterwards he joined the Culpepper Minute Men, and delivered an eloquent address to the company. His father was major of his regiment, and at the bat tle of Great Bridge, John was made lieutenant of a flanking party which advanced under a murderous fire, and terminated the engagement. In July, 1776, John was made lieutenant of a company in the Eleventh Virginia Regiment on continental service, and marched to the north, and in May, 1777, he was made a captain. He participated in the battles of Iron Hill, Germantown, Monmouth and Brandywine, at the last of which he and his father especially signalized themselves. John shared the hardships and sufferings at Valley Forge "with unvarying good humor and sanguine hopefulness." During these years of service, he frequently acted as deputy judge advocate, and secured the warm regard of Washington.

In the winter of 1779 he was sent to Virginia to take command of a new corps to be raised by the legislature of that state; and, pending the matter, he attended at William and Mary's College a course of law lectures, delivered by the pure and able George Wythe, Chancellor of Virginia; and also a course of lectures by Bishop Madison, on natural philosophy. The next summer he was nominally admitted to the bar, but was soon drawn back into the army. Virginia failed to raise the regiment, and so he walked back to Philadelphia, and when he reached there he was so shabbily dressed that the landlord refused him admittance.

In 1781, by reason of a superabundance of officers, he resigned his commission, with the purpose of entering upon the practice of his profession, but the times were ominous and there was a public demand for his services, and so, in the early part of 1782 he became a member of the house of delegates from his county, and in the fall of the same year became a

SPECIAL ADDRESS.

member of the council of state. January 3, 1783, he married Miss Mary W. Ambler, daughter of the state treasurer. In the same year peace was effected with Great Britain, and so he resigned from the council, took up his residence in Richmond, and with all the energy of his nature, applied himself to the practice of his profession. He had now reached the age of twenty-eight, and although he had been at the bar for four years, yet the interruptions had been so frequent and protracted as not to allow very much professional progress. His preparatory education for entering upon the study of the law, had certainly been defective. It reminds us of the distinguished Erskine, studying by himself four years at sea and six years in the army; or Hamilton, who seemed to acquire knowledge and wisdom almost by intuition, whether in the West Indies, at sea, at school, at his private lodgings or in the army. Marshall's opportunities for thorough and comprehensive study of the more intricate branches of the common law, had not only been quite limited, but pursued under adverse and embarrassing circumstances.

On the other hand, the education of John Scott, preliminary to entering upon his legal studies, was of a high order, and although we may reasonably reject the statement that he was fit to preside on the bench before he had ever pleaded a cause, yet all must admit that his efforts as a law student had been as thorough, persistent and exhaustive as he had the capacity to endure.

At the time Marshall took up his residence in Richmond, John Scott had been at the bar for seven years, every one of which had been marked by severe study and application. During the first three years of his practice, he appears to have had an ambition for eminence in the courts of law as distinguished from the courts of equity, and during that period he may have had dreams of holding the office then held by Mansfield, and once held by Coke, Hale and Holt; but in 1779 he transferred his ambition to the Court of Chancery,

JOHN B. CASSODAY.

giving as a reason the probably unfounded suspicion, that Lord Chief Justice Mansfield was partial toward the lawyers who had been educated at Westminster, and hence that he did not have a fair showing in the Court of King's Bench. When we reflect, however, upon his heavy, cumbersome and at times ambiguous style of argument and opinion, replete with "ifs" and "buts" and "thoughs," we may fairly infer that he had become convinced that he could never successfully compete in the trial of jury causes with such brilliant advocates as Thomas Erskine, Edward Law and others who might be named. However this may have been, he soon demonstrated his aptitude for the patient, plodding and exhaustive work essential to success in the Court of Chancery. His able argument on the subject of lapsed legacies in Ackroyd vs. Smithson (1 Brown Ch. Rep., 503) induced Lord Chancellor Thurlow, against the arguments of Kenyon and others, in 1780, to reverse the decree, and this gave to Scott a celebrity in such controversies quite similar to that acquired by Coke in arguing Shelly's Case, 200 years before. In the same year, Erskine acquitted Lord George Gordon of high treason.

True, Scott's practice was mostly confined to the northern circuit, while weaker, but more brilliant lawyers, like Erskine, were engaged in trials in the different courts of England. But his fame as a profound reasoner steadily advanced, until he had no superior, if any equal, in Great Britain. In 1787 he was made a local chancellor at Newcastle, and in the same year Edward Law, better known as Lord Ellenborough, was retained by Warren Hastings, as leading counsel, assisted by Plomer and Dallas, one of whom was two and the other five years younger than Scott, to defend him against impeachment for high crimes and misdemeanors while Governor-General in India, about to be prosecuted in the House of Lords by the House of Commons, led by that trio of able debaters, Burke, Fox and Sheridan. Hastings preferred and sought to retain Thomas Erskine, who, although only ten

SPECIAL ADDRESS.

years at the bar, was rightfully regarded as its most brilliant advocate, but he belonged to the opposing party and was a personal friend of Fox, and hence declined, although he would have been pleased to have measured forensic swords with Burke, for whom he entertained no particular friendship. This greatest trial of the century was commenced in the House of Lords in 1788, with the rough and imperious Lord High Chancellor Thurlow presiding, yet it did not terminate in the acquittal of Hastings until seven years afterwards, when a new chancellor occupied the wool sack. It is mentioned here merely because John Scott "was not in it," while several of his contemporaries and three of his juniors were. Mansfield resigned in 1788, and Kenyon was made Lord Chief Justice in his place. In the same year Scott was made Solicitor General, with the title of Sir John, and five years afterwards he was promoted to the attorney-generalship, which office he continued to hold until in July, 1799, when he was made Chief Justice of the Common Pleas, with the title "Baron of Eldon." Thus for eleven years, as law officer for the Crown, he was necessarily opposed to some of the most brilliant lawyers in the Kingdom, before Kenyon and the King's Bench, as well as some of the ablest equity lawyers before Lord Chancellor Thurlow, and subsequently before the brilliant and ambitious, if not unscrupulous, Wedderburn, who succeeded him in 1793 as Lord High Chancellor of Loughborough; and upon all occasions he acquitted himself, to say the least, fairly well.

After presiding in the Court of Common pleas for about two years, and upon the resignation of Loughborough, he was, on April 14, 1801, made Lord High Chancellor Eldon. Only two and one-half months before that time John Marshall was made Chief Justice of the Supreme Court of the United States.

Nothing has here been said about Marshall between the time of his entering upon his profession in Richmond, at the close of the revolution in 1783, and his appointment as Chief

« PreviousContinue »